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HomeMy WebLinkAbout1987-0161.Thomas.88-06-07IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: ------- OPSED (John Thomas) Grievor and The Crown in Right of Ontario (Ministry of Community & Social Services) Employer Before: -_---- For the Grievor: __------------- For the Employer: - -- -- -- -- -- Hearing Dates: -_----------- B. Kirkwood G.A. Nabi G.J. Milley Vice Chairman Member Member M. Alchuk Solicitor Legal Services Branch Ministry of Community and Social Services I. Roland Counsel Gowling & Henderson ,. Barristers & Solicitors July 9, 1987 November 9, 1987 November 16, 1987 161/87 Page 2 Decision The grievor was employed as a cleaner at the South-West Regional Centre until he executed a letter of resignation on February 17,1987. On February 19.1987 the grievor fded a grievance to seek reinstatement on the basis that he was under undue stress from his employer, when signing the letter of resignation and that the letter of resignation was impressed upon him for execution by the management. The issue solely before the Board is to determine whether or not the resignation was voluntary. If the resignation was voluntary as submitted by the employer, the Board would have no jurisdiction to consider the matter any further as the grievor would no longer be an employee under the collective agreement. The union on the other hand, claims that the grievor did not have the capacity to understand the importance of the documents which he signed and that the grievor was under undue pressure from his employer at the time that the resignation was made and therefore the resignation was involuntary, and that he should be reinstated. On Thursday, February 12, 1897, the grievor visited Dr. McNeil, a psychiatrist, on a referral by his own doctor, for a stress related illness. The grievor said that he was experiencing problems arising from the stress which was created in his home environment, from allegations made by his estranged wife that he was a child molester and’from her denial of access to his child, and from his work environment, from the constant fear that he was going to be terminated should he make any mistakes. The second fear was based upon a letter of understanding which he signed with his employer that he would resign should there be any problems after he teturned to work after attending an alcohol and drug rehabilitation program. Dr. McNeil provided the grievor a letter which suggested that the grievor should take three to four weeks off work until the stress could disappear with treatmenr The grievor returned to work that day and left the dq)or’s letter on Nancy Hutchins’ desk, the Manager of Housekeeping and Laundry, and continued to work. Nancy Hutchins did receive the letter. The next day, after learning that the grievor intended to take the leave from work the following Monday, she called the grievor into her office to meet with him, not to discuss the doctor’s letter, but to discuss complaints which had been made about him and problems that she had with his work habits. George Szatori, the union steward, and Murray Stark, the personnel human resources manager, were also present at the meeting. Page 3 The grievor could recall very little of the conversation and of the events of the next few days and therefore the Board is relying for the most part upon the testimony of other wimesses. At this meeting, Nancy Hutchins presented the problems that had come to her attention - that he was leaving work early, that he was rude to his supervisor, Betty Anne Smith, and that he had thrown his mop across the floor, claiming that he was not going to use it, and finally that notwithstanding prior warnings he continued to be around the door to the women’s changing rooms at the time that they were changing to go home and that the women felt he was looking into the changing room. Nancy Hutchins told the grievor that she was going to charge him with insubordination and recommend that he be dismissed in the disciplinary proceedings. She drew his attention to the letter of undetstanding which he had signed prior to entering the alcohol and drug rehabilitation programme and reminded him that she had lived up to her side of the bargain by allowing him to attend the program and that he had agreed that he would resign if there were any further incidents. If he were to resign he could expect to receive approximately $5,000.00. The grievor indicated that he wanted to resign and George Szatori was given the opportunity to speak to the grievor by himself. After the discussion, George Szatori asked that the grievor be given sick leave commencing immediately. Nancy Hutchins agreed but stated that disciplinary procedures would continue upon the grievor’s return to work. Ms. Hutchins said that the grievor had called her a couple of days later to tell her that he wanted to resign and to find out how much time would he be required to give. She told him that she did not want him to resign, and that she did not want to discuss it with him. Therefore he came to her office on February 17.1987. -When the grievor came to Nancy Hutchins’ office, she called George Szatori into her office and Murray Stark arrived shortly thereafter. George Szatori had the opportunity to meet with the grievor alone who still took the position that he wished to resign, that he was unable to make it at the Centre and he wished to go into a business. Although George Szatori tried to discourage him the grievor did not change his mind, he was only concerned with the money that he.would get from the resignation. The grievor and George Szatori returned-i0 the meeting and George Szatori completed the resignation form which Nancy Hutchins had given him for signature by the grievor. There were some discussions as to the reasons that were to be included on the form. Nancy Hutchins specified that the form had to indicate that the resignation was due to “stress and not due to duress” as she did not want it to be construed that she had caused any duress to the grievor. Accordingly, the resignation form was completed as she requested. After the meeting was concluded, the grievor met With Murray Stark to discuss his severance and the method in which payment would be. made. Page 4 The onus is upon the union to establish that the resignation was not voluntary. The union submitted that although the events may have been consistent with an intent to quit, the grievor did not have the capacity to understand the documents he was signing and the intent to quit was not freely given as the resignation was the result of excessive pressure by the employer. The principles which have emerged in determining whether a person has ‘quit’ or whether the person is discharged is based upon whether the person has, on an objective analysis of the circumstances leading to the termination, the subjective intent to resign. That is does the person have the actual intent to resign or is the person acting as part of an emotional outburst, as a reaction to an event, or for other reasons. ( (OPSEU (anomymous) and The Crown in Right of Ontario (Ministry of Government Services), GSB., #268/83, R. McLaren, November 22, 1983; OPSEU (Bonnie Mansell) and the Crown in Right of Ontario (Ministry of Corrktional Services), G.S.B. #598/83, R.L. Verity, Q.C.; Re University of Guelph and Canadian Union of Public Employees, Local 1134, 1973, 2 L.A.C. 26 351 O.F. Shim) Ostensibly the grievor did not appear to those around him, to be acting in the meetings of February 13th and 17th. in any manner different from his usual behaviour. Although he did appear to be a bit confused, he offered to resign. His words, however, are not a sufftcientindicator as to whether the actions were voluntary or not. Whether or not the grievor came under such stress that it could be considered as being undue duress so as to obviate the voluntariness of his resignation; is dependent upon the circumstances and upon the actions of the employer. Nancy Hutchins had received the doctor’s letter from the grievor and was aware of its contents. It was apparent to Dr. McNeil who had only just taken over the care of the grievor, that the grievor should be absent for three or four weeks for stress related illness. The extent of time for a leave of absence in itself signifies that the grievor has serious problems and may not be acting in his usual manner. Nancy Hutchins had complaints which she wished to bring up and she ignored the doctor’s letter and chose to treat the grievor as she would have in any other normal situation. The doctor’s letter should have alerted her to the possibility that the grievor may not be capable of coping with a suessful situation. In ignoring the letter and?gnoring that a leave of absence was being recommended, the employer was seizing an opportunity to bring matters to a head at a time when the grievor was most vulnerable and may not have been capable of handliig the issues. From her own perspective, the very complaints which she wished to discuss with him, the nudeness and the tempetuous throwing of the mops, if they were true, indicate that the grievor was not acting rationally. Page 5 In the meeting of February 13, 1987, Nancy Hutchins placed a great deal of stress upon the grievor. By presenting the problems and emphasizing to the grievor that she had lived up to her side of the agreement and now he had to live up to his side of the agreement, she is directly implying that he should resign if he was involved in any of the incidents. Although there may be factors that are considered in an arbitration resulting from the complaints, the letter of understanding did not refer to any other factors and therefore it appeared on the face of the letter of understanding that any involvement in any incident requited the grievor’s resignation. The Board finds that the grievor is a man of limited intelligence and does not have the sophistication to weigh any factors that could be considered in a grievance procedure nor in an arbitration, against the face of the document. Furthermore Nancy Hutchins told him that she was going to proceed through the grievance procedure and she would recommend dismissal. In addition, she was increasing the pressure put upon him by suggesting that ,if he were to resign he would get $5,COO if he resigned, which leaves him with the risk that if he were to proceed through the grievance procedure and he did not succeed, he would be out of a job and would get nothing. In the best of circumstances, it may have been a difftcult task to weigh the alternatives, but in the grievor’s state of mind at the time, he did not have the ability to assess the information provided and deal with its consequences rationally. In most circumstances, a discussion of various alternatives would not necessarily mean that there was duress, even if the situation was stressful to the employee. An employee has to be responsible for his own actions, and cannot by his own actions create a situation which is stressful and then claim that there is undue stress or duress which would make the resignation inovluntary. However, if there is undue stress created by the employer it may create a situation in which the resignation is provoked cr is involuntary. The employer is entitled and should canvass problems as they appear or as they occur. However, the employer was aware through the doctor’s letter that there were difticulties should the employer wish to proceed to canvass the problems at that time. Nevertheless, because the grievor was taking a leave on the following Monday, the employer deliberately chose to deal with the events before his depamtre. The employer was then faced with the grievor who is barely literate, appears slow to comprehend the events around him; is under a great deal of stress in his home environment and in the work environment. The Board finds that in the circumstances the grievor was not in a state of mind to comprehend fully what was being said to him as well as the effect of his resignation. The Board finds that the grievor did not have the c.apacity to absorb the information, process the information and understand the implications of his actions at that time. Although the grievor was given the chance to discuss the events with his union representative, he still did not have the capacity at that time to deal with the situation in a rational and logical manner. Page 6 The grievor did not resign until February 17, 1987 and it appears at fust glance that he knew what he was doing. He had phoned Nancy Hutchins, he had spoken to George Szatoti and he signed the resignation. He was also capable of speaking to Murray Stark after the meeting concerning his benetits and the manner of payment. However, the meeting of February 13, 1987 still remained the driving force behind the resignation. The board does not find that he was any more capable of forming the subjective intent to resign on February 17, 1987 than he was on February 13.1987. Although the grievor did have the benefit of a few days to consider the matter, the Board finds that the circumstances surrounding the meeting of February 13, 1987 were such that the grievor still did not have the ability to canvass the situation rationally and to understand the implications of his actions. He could therefore not form the subjective intent to resign. Even though Nancy Hutchins told the grievor that she was not looking for the grievor’s resignation, and Nancy Hutchins reasserted this claim at the hearing, she was at the same time reccommending his dismissal and the Board Ends that she was asking for and was provoking his resignation. Nancy Hutchins was aware of the duress that the grievor may have considered himself subject to and therefore she amended the resignation to specifically exclude duress; however to do so in writing does not necessarily mean that it does not exist. The Board finds that in these circumstances there was undue duress. Accordingly, the grievor’s state of mind and his inability to form the subjective intent to resign, and considering the employer’s actions, the Board finds that the resignation was involuntary. Furthermore, the grievor acted promptly in filing a grievance requesting reinstatement which supports the proposition that he had not truly intended to resign. In reviewing the actions of the grievor in the meetings of February 13 and 17, 1987. the Board cannot criticize the employer for responding to thebutside appearance that the grievor apeared to intend to resign. He met with his union representative on both days, and he did not appear to be any different to those around him than he usually is. Therefore, the Board finds that the employer should not he penalized. Page 7 The Board finds that the grievor should be reinstated upon the grievor refunding all sums advanced to him as a result of his severance within two months of this award. If the grievor has failed to refund the monies within this time period, his entitlement to reinstatement will be lost. As this decision does not deal with the merits of the employer’s complaints, as those complaints were not the subject matter of this grievance, the employer is not estopped by this award from proceeding on disciplinary proceedings if they choose to do so. DATED at Toronto this 7th day of June, 1988. Belinda A. Kirkwood - Vice-Chairman Gordon A. Nabi, Union Member FLdLay George J. Milley, Employer Member